Open Records Decision No. 376
May 5, 1983
Re: Are memoranda prepared by Department of Human Resources concerning
investigation of nursing home available under the Open Records Act
Mr. Marlin W. Johnston
Commissioner
Texas Department of Human Resources
706 Banister Lane
Austin, Texas 78769
Dear Mr. Johnston:
On February 9, 1983, the Dallas Times Herald published an article in which the
authors stated that the state of Texas is investigating a particular nursing home. This
article contained quotations purportedly taken from documents in your possession. After
the article was published, the attorney who represents the nursing home asked you for
copies of the documents to which the authors referred. You have asked whether the
Open Records Act, article 6252-17a, V.T.C.S., requires you to grant this request.
You have sent us four interagency memoranda dated January 12, 1982, February
8, 1982, July 29, 1982, and September 9, 1982. We assume that the request for
information embraces only these documents. You contend that sections 3(a)(1), 3(a)(7),
and 3(a)(11) of the Open Records Act apply to two memoranda in their entirety and to
parts of the other two memoranda. These sections except from required public
disclosure:
(1) information deemed confidential by law, either Constitutional,
statutory, or by judicial decision;
. . . .
(7) matters in which the duty of the Attorney General of Texas or
an attorney of a political subdivision, to his client, pursuant to the
Rules and Canons of Ethics of the State Bar of Texas are prohibited
from disclosure, or which by order of a court are prohibited from
disclosure; [and]
. . . .
(11) inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than one in litigation
with the agency.
Before considering your claims, we must deal with a threshold matter. As noted,
the newspaper article contained quotations purportedly taken from these memoranda; it
seems, therefore, that these memoranda somehow found their way into the possession of
the authors of the article. In your request letter, however, you state that the department
has never voluntarily or officially released or sanctioned the release of any of these
memoranda. We will assume for purposes of this decision that this is correct.
Although this office has held that a governmental body that voluntarily furnishes
information to a newspaper may not later claim that that information may be withheld
from others, Open Records Decision No. 162 (1977), it has never held that information
which is not voluntarily released by a governmental body, but which nevertheless finds
its way into the hands of a member of the general public, is henceforth automatically
available to everyone. In our opinion, the Open Records Act does not preclude a
governmental body from invoking one or more of the act's exceptions to protect from
further public disclosure information which has been released on a limited basis through
no official action, and against the wishes and policy of, the governmental body. We
therefore conclude that the fact that the Dallas Times Herald seems to be or to have been
in possession of the four memoranda does not prohibit you from attempting to withhold
the memoranda from others.
We first consider the February 8, 1982, memorandum. You seek to withhold
only the third sentence of the second paragraph and the last paragraph. The sentence
expresses the opinion of its author, while the last paragraph consists of a
recommendation. These portions of the memorandum may therefore be withheld under
section 3(a)(11), which excepts from required disclosure “advice, opinion and
recommendation” contained in interagency or intragency memoranda. Open Records
Decision Nos. 344, 335, 315 (1982).
We next consider the July 29, 1982, memorandum. You seek to withhold only
the name of the individual whose complaint caused the initiation of this investigation. In
our opinion, this name may be withheld under the “informer's privilege” aspect of section
3(a)(1). This office has previously held that the informer's privilege excepts from
disclosure, inter alia, the identity of a person who reports a violation of a zoning
ordinance, Open Records Decision No. 279 (1981), furnishes information regarding
possible violation of air pollution laws, Open Records Decision No. 296 (1981), reports a
possible violation of child care standards, Open Records Decision No. 176 (1977), and
complain to a city's animal control division, Open Records Decision No. 156 (1977).
These decisions compel the conclusion that the informer's privilege is applicable in this
instance.
Finally, we consider the January 12, 1982, and September 9, 1982, memoranda.
The former actually consists of two separate memoranda that were written by the same
person and bear the same date. In our opinion, these memoranda are excepted from
required disclosure under section 3(a)(11).
In Attorney General Opinion H-436 (1974), this office stated that section 3(a)(11)
is:
designed to protect from disclosure advice and opinion on policy
matters and to encourage open and frank discussion between
subordinate and chief concerning administrative action.
In this instance, a small portion of these memoranda does not constitute “advice, opinion
and recommendation.” Most portions of the memoranda do fit in this category, however,
and we are of the opinion that enough of the memoranda is in this category to warrant the
conclusion that the memoranda may be withheld in their entirety. As we read these
memoranda, they are precisely the type that should be withheld in order “to encourage
open and frank discussion between subordinate and chief concerning administrative
action.” Attorney General Opinion H-436 (1974). See, e.g., Open Records Decision
Nos. 344, 335, 308 (1982).
Very truly yours,
Jim Mattox
Attorney General of Texas
Tom Green
First Assistant Attorney General
David R. Richards
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
Approved:
Opinion Committee
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Nancy Sutton